CONGRESS, THE COURT, AND THE

CONSTITUTION

THURSDAY, JANUARY 29, 1998

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 9:32 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.

Present: Representatives Charles T. Canady, Henry J. Hyde, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, and Melvin L. Watt.

Staff present: John Ladd, Counsel; Keri Folmar, Chief Counsel; Brett Shogren, Research Assistant; Michael Connally, Staff Assistant; Brian Woolfolk, Minority Staff; Julian Epstein, Minority Staff Director, and Robert Carry, Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

Mr. CANADY [presiding]. The subcommittee will be in order. The subcommittee is holding this hearing today to examine the respective roles of the Congress and the Supreme Court in interpreting the Constitution. With the help of our witnesses today, we will consider whether one branch of our Federal Government has a monopoly on Constitutional interpretation.

I believe the framers of our Constitution expected the Congress to play an important role in debating and legislating our constitutional issues. It is important to the Congress to ask itself if deference to the Supreme Court is always the order of the day. We have a responsibility to consider the circumstances under which the Congress should or should not defer to the Supreme Court in making Constitutional interpretations. And we have the duty to ensure that the requirements of the Constitution are consistently recognized and honored in the legislative process.

While the exclusive focus of today's hearing is not the Court's Boerne v. Flores decision of last term, that case does represent the most recent expression of tension in an ongoing relationship between the Congress and the Court. Despite the Court's holding in Boerne, Justice Kennedy stated to the Court that, and I quote, "When the Congress acts within its sphere of power and responsibility, it has not just the right but the duty to make its own informed judgment of the meaning and force of the Constitution."

In light of the result in Boerne, it is incumbent on Members of Congress to reflect on the scope of our sphere of power and respon

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sibilities so that we can exercise our duty, as Justice Kennedy put it, "to make our own informed judgment on the meaning and force of the Constitution."

I look forward to hearing from our witnesses today, and I now recognize Mr. Scott for 5 minutes.

Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate the opportunity we're taking to examine the relationship between Congress, the Court, and the Constitution. Constitutional tension between Congress and the judiciary is nothing new. The drafters of the Constitution established three branches of Government, all with equal responsibilities, to protect and uphold the Constitution. The strength of our system of Government is based on the interdependence of three separate but equal branches of Government. The fact that from time-to-time the branches disagree is a tribute to our democracy and in no way threatens the sovereignty of its people. We should take pride in knowing that our vigorous system of checks and balances not only protects us from external threats at home and abroad, but also protects us from the greatest threat ever imagined by our Founding Fathers, and that threat is ourselves.

I understand that there have been a number of proposals intended to minimize the healthy tension now existing between Congress and the courts. I am particularly concerned by the suggestion by some that we should more frequently exercise our impeachment powers to rid ourselves of the actions of activist judges who thwart the will of the people, and we should investigate these judges, Mr. Chairman.

I understand that in the 1996-97 term of the Supreme Court, four of the seven acts of Congress reviewed were invalidated. Only two justices voted to invalidate all seven of the acts of Congress considered in the most recent term, taking every opportunity they had to thwart the will of the people. There was another judge that voted six out of seven times to thwart the will of the people, and we should investigate and expose these justices for thwarting the will of the people. And Mr. Chairman, we need to do some research to find out who these justices are.

Mr. CANADY. Wait

Mr. SCOTT. Wait a minute, Mr. Chairman. My staff has already supplied me with that information-seven out of seven; Justice Scalia and Justice Thomas-six out of seven; Chief Justice Rehnquist. I look forward to the testimony of the witnesses, Mr. Chairman, to see whether or not we would have been better off without these activist judges on our Court. [Laughter.]

So I look forward to the testimony of the witnesses, Mr. Chairman, and thank you for calling the hearing. I am particularly looking forward to hearing from Professor Devins, who is a professor at William and Mary Marshall School of Law, which, depending on the actions of the General Assembly tomorrow and the next day, may be in or out of my district. [Laughter.]

Thank you, Mr. Chairman.

Mr. CANADY. Thank you, Mr. Scott. With the General Assembly meeting on a such a matter today, I'm very pleased that you were able to be here. [Laughter.]

Mr. SCOTT. I'm well-represented today in Richmond, you can be

sure.

Mr. CANADY. I'm sure you are.

We're very pleased to have a distinguished panel of Members to start off the hearing today. We have four Members on this panel. The first to testify will be the Honorable Ron Lewis. Congressman Lewis represents the 2nd District of Kentucky and serves on both the Agriculture and National Security Committees in the U.S. House of Representatives.

Next we will hear from the Honorable John Hostettler. Representative Hostettler, who represents the 8th District of Indiana, has recently published an articled entitled "The Constitution's Final Interpreter: We the People," in the Regent University Law Review.

The Honorable Barney Frank will be the next to testify. A member of the House Judiciary Committee and former ranking member of this subcommittee, Representative Frank has represented the 4th District of Massachusetts since 1981.

Finally, on our first panel, we will hear from the Honorable Tom Campbell. Representative Campbell, who serves the people of the 15th District of California, has taught constitutional law at Stanford University.

Without objection, your written statements will be made a part of the permanent record, and I would ask you to do your best to summarize your testimony in no more than 5 minutes; we'll have the light on. Unless some member of the subcommittee insists, we won't stay strictly to the 5-minute rule, but as close as you could come to that, we would appreciate it.

So with that we welcome you all, and I'll recognize Representative Lewis.

STATEMENT OF HON. RON LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY

Mr. LEWIS. Mr. Chairman and members of the subcommittee, first let me thank you for allowing me to participate in this important debate.

As I understand it, the debate before us today is one about power, not power in the raw political sense, but in terms of the allocation of Government authority between each branch of Government, or more specifically, between Congress and the judiciary.

In a Federal system that relies on checks and balances between the three branches to protect our liberty, having this debate is fundamental to understanding what kind of Government we have, or more important, aspire to. Indeed, it is a debate and conversation that has been taking place since our founding.

My observations this morning are not those of a lawyer, a constitutional law professor, or political scientist, although I look forward to the testimony of those informed with those credentials. Instead, my views are those of a relatively new Member of Congress who believes that swearing to uphold the Constitution requires serious thought about what the Constitution means.

My experience so far is that at no point is the tension between Congress and the courts greater than in the realm of constitutional

interpretation-determining what those carefully chosen and debated words mean.

Early in our history, Justice Marshall answered that question in favor of the Supreme Court with a phrase that has become an axiom: "It is emphatically the province and duty of the judicial branch to say what the law is." That is an extraordinary recognition of judicial power in a constitutional form of Government.

This is a notion of great consequence, being then as Justice Rehnquist observed, "The exercise of the judicial power also affects the relationships between the co-equal arms of the national Government." That is, when judicial power expands, congressional power contracts. This is particularly true when the power to interpret the Constitution rests in the hands of activist judges anxious to find the latest right hiding between the lines of the written document. Nothing, of course, prohibits Congress from enacting additional rights or privileges, but as elected representatives of the people, that is our job.

So to my colleagues, I would simply say this debate is about how much of our authority and responsibility should be parceled out to the judicial branch. As Professor Ely writes, "When a court invalidates an act of the political branches on constitutional grounds, however, is it overruling their judgment and normally doing so in a way that is not subject to 'correction' by the ordinary lawmaking process. Thus, the central function and at the same time the central problem of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they like." My fear is that Congress, as an institution, has too often used the excuse of Marbury v. Madison to avoid our own important role in constitutional interpretation. Our Founding Fathers created three separate branches of Government. They created checks and balances on each branch. They required officials in each branch to take an oath of office to support and defend the Constitution. And our founders ensured that each branch, including Congress, play a role in constitutional interpretation.

The framers did not give authority to one branch over the other. Certainly, each branch has its separate functions, but debating, defending, and upholding the tenets of the Constitution involve the decision and duties of each branch.

Through history, there are specific examples where Congress has asserted its independent role as interpreter successfully and in contrast to the court. The issue of slavery provides a good example, for Congress continued to pass legislation in 1962 banning slavery in the territories before the Dred Scott decision was overturned.

As Lou Fisher, who we will hear from later, writes, "Congress never doubted their constitutional power to prohibit slavery in the territories and proceeded to announce their independent interpretation, with or without the Court."

This tension is also illustrated by the Supreme Court's recent decision in The City of Boerne v. Flores, Archbishop of San Antonio. The Religious Freedom of Restoration Act, which the House passed under suspension of the rules and the Senate passed 97 to 2, was struck down by the Court on constitutional grounds. Writing for the majority, Justice Kennedy observed the following:

"If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.' It would be on the level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.” And, of course, that comes from Marbury v. Madison. "Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article 5."

But, you know, I wonder if you infused in that if the Court can define its own powers by altering the meaning of the Constitution. Where does its power end?

These historical examples of independent actions by Congressactions where the courts have agreed and those where they have not-reiterate that the Constitution does not prohibit our ability to interpret constitutional issues. As a Congress and throughout the country, we must change our thinking, recognize this fact once again, and put its authority to use. We, as a Congress, must define our role in constitutional interpretation in a forceful and direct way.

In a few weeks, informed by today's discussions, I will introduce a resolution I hope will begin to reaffirm our role. The resolution will affirm our authority to interpret the Constitution independently from the courts and hopefully provide a catalyst for further debates and discussions. I look forward to today's testimony, and, again, thank you for this opportunity.

[The prepared statement of Mr. Lewis follows:]

PREPARED STATEMENT OF HON. RON LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY

Mr. Chairman, Members of the Subcommittee, first let me thank you for allowing me to participate in this important debate.

As I understand it, the debate before us today is one about power. Not power in the raw political sense, but in terms of the allocation of government authority between each branch of government-or more specifically, between Congress and the Judiciary.

In a federal system that relies on checks and balances between the three branches to protect our liberty, having this debate is fundamental to understanding what kind of government we have, or more important, aspire to. Indeed, it is a debate and conversation that has been taking place since our founding.

My observations this morning are not those of a lawyer, a constitutional law professor or political scientist, although I look forward to the testimony of those informed with those credentials. Instead, my views are those of a relatively new member of Congress who believes that swearing to uphold the Constitution requires serious thought about what the Constitution means.

My experience so far is that at no point is the tension between Congress and the Courts greater than in the realm of constitutional interpretation-determining what those carefully chosen and debated words mean.

Early in our history, Justice Marshall answered that question in favor of the Supreme Court with a phrase that has become an axiom: "It is emphatically the province and duty of the Judicial Branch to say what the law is,” Marbury v. Madison 5 U.S. (1 Cranch) 137, 177 (1803)

That is an extraordinary recognition of judicial power in a constitutional form of government. This is a notion of great consequence being then as Justice Renquist observed "[t]he exercise of the Judicial power also affects relationships between the co-equal arms of the National Government." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 473 (1982). That is, when judicial power expands, Congressional power contracts.